| 3 | 5 | | |
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| 4 | 6 | | |
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| 5 | 7 | | A BILL TO BE ENTITLED |
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| 6 | 8 | | AN ACT |
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| 7 | 9 | | relating to the waiver of jurisdiction and discretionary transfer |
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| 8 | 10 | | of a child from a juvenile court to a criminal court. |
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| 9 | 11 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 10 | 12 | | SECTION 1. Section 54.02, Family Code, is amended by |
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| 11 | 13 | | amending Subsections (d), (f), (h), (l), and (n) and adding |
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| 12 | 14 | | Subsections (d-1) and (d-2) to read as follows: |
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| 13 | 15 | | (d) Prior to the hearing, the juvenile court shall admonish |
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| 14 | 16 | | the child in open court and in the presence of the child's counsel |
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| 15 | 17 | | regarding: |
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| 16 | 18 | | (1) the court's consideration of waiving its |
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| 17 | 19 | | jurisdiction over the child and transferring the child to criminal |
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| 18 | 20 | | court for criminal proceedings; and |
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| 19 | 21 | | (2) the child's right to participate or to decline to |
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| 20 | 22 | | participate in any diagnostic study, social evaluation, or |
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| 21 | 23 | | investigation ordered by the juvenile court under Subsection (d-1). |
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| 22 | 24 | | (d-1) After the admonishment under Subsection (d), the |
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| 23 | 25 | | juvenile court shall order [and obtain] a complete diagnostic |
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| 24 | 26 | | study, social evaluation, and full investigation of the child, the |
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| 25 | 27 | | child's [his] circumstances, and the circumstances of the alleged |
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| 26 | 28 | | offense and shall set the date of the transfer hearing. If the |
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| 27 | 29 | | child declines to participate in a study, evaluation, or |
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| 28 | 30 | | investigation, the attorney for the child shall state the refusal |
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| 29 | 31 | | to the court in open court or in writing not later than the fifth |
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| 30 | 32 | | business day after the date the court ordered the study, |
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| 31 | 33 | | evaluation, or investigation. |
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| 32 | 34 | | (d-2) In a hearing under this section, a presumption exists |
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| 33 | 35 | | that it is in the best interest of the child and of justice that the |
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| 34 | 36 | | juvenile court retain jurisdiction over the child. The burden is on |
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| 35 | 37 | | the state to overcome this presumption. |
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| 36 | 38 | | (f) In making the determination required by Subsection (a) |
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| 37 | 39 | | of this section, the court shall consider, among other matters: |
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| 38 | 40 | | (1) whether the alleged offense was against person or |
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| 39 | 41 | | property, with greater weight in favor of transfer given to |
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| 40 | 42 | | offenses against the person; |
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| 41 | 43 | | (2) the sophistication and maturity of the child; |
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| 42 | 44 | | (3) the record and previous history of the child; |
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| 43 | 45 | | [and] |
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| 44 | 46 | | (4) the prospects of adequate protection of the public |
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| 45 | 47 | | and the likelihood of the rehabilitation of the child by use of |
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| 46 | 48 | | procedures, services, and facilities currently available to the |
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| 47 | 49 | | juvenile court; |
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| 48 | 50 | | (5) the substantive requirements for waiving |
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| 49 | 51 | | jurisdiction; |
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| 50 | 52 | | (6) relevant information ascertained in the full |
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| 51 | 53 | | investigation of the child; and |
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| 52 | 54 | | (7) the benefits or harm of retaining the child in the |
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| 53 | 55 | | juvenile justice system. |
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| 54 | 56 | | (h) If the juvenile court waives jurisdiction, it shall |
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| 55 | 57 | | state specifically in the order its reasons for waiver. The |
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| 56 | 58 | | statement of reasons must set forth a rational basis for the waiver |
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| 57 | 59 | | of jurisdiction, with sufficient specificity to permit meaningful |
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| 58 | 60 | | review, and must include case-specific findings of fact that do not |
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| 59 | 61 | | rely solely upon the nature or seriousness of the offense. The |
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| 60 | 62 | | court shall [and] certify its action, including the written order |
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| 61 | 63 | | and findings of the court, and shall transfer the person to the |
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| 62 | 64 | | appropriate court for criminal proceedings and cause the results of |
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| 63 | 65 | | the diagnostic study of the person ordered under Subsection (d-1) |
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| 64 | 66 | | [(d)], including psychological information, to be transferred to |
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| 65 | 67 | | the appropriate criminal prosecutor. On transfer of the person for |
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| 66 | 68 | | criminal proceedings, the person shall be dealt with as an adult and |
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| 67 | 69 | | in accordance with the Code of Criminal Procedure, except that if |
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| 68 | 70 | | detention in a certified juvenile detention facility is authorized |
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| 69 | 71 | | under Section 152.0015, Human Resources Code, the juvenile court |
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| 70 | 72 | | may order the person to be detained in the facility pending trial or |
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| 71 | 73 | | until the criminal court enters an order under Article 4.19, Code of |
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| 72 | 74 | | Criminal Procedure. A transfer of custody made under this |
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| 73 | 75 | | subsection is an arrest. |
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| 74 | 76 | | (l) The juvenile court shall conduct a hearing without a |
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| 75 | 77 | | jury to consider waiver of jurisdiction under Subsection (j). |
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| 76 | 78 | | Except as otherwise provided by this subsection, a waiver of |
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| 77 | 79 | | jurisdiction under Subsection (j) may be made without the necessity |
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| 78 | 80 | | of conducting the diagnostic study [or complying with the |
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| 79 | 81 | | requirements of discretionary transfer proceedings] under |
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| 80 | 82 | | Subsection (d-1) [(d)]. If requested by the attorney for the person |
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| 81 | 83 | | at least 10 days before the transfer hearing, the court shall order |
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| 82 | 84 | | that the person be examined pursuant to Section 51.20(a) and that |
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| 83 | 85 | | the results of the examination be provided to the attorney for the |
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| 84 | 86 | | person and the attorney for the state at least five days before the |
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| 85 | 87 | | transfer hearing. |
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| 86 | 88 | | (n) A mandatory transfer under Subsection (m) may be made |
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| 87 | 89 | | without conducting the study required in discretionary transfer |
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| 88 | 90 | | proceedings by Subsection (d-1) [(d)]. The requirements of |
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| 89 | 91 | | Subsection (b) that the summons state that the purpose of the |
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| 90 | 92 | | hearing is to consider discretionary transfer to criminal court |
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| 91 | 93 | | does not apply to a transfer proceeding under Subsection (m). In a |
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| 92 | 94 | | proceeding under Subsection (m), it is sufficient that the summons |
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| 93 | 95 | | provide fair notice that the purpose of the hearing is to consider |
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| 94 | 96 | | mandatory transfer to criminal court. |
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| 95 | 97 | | SECTION 2. Section 54.02, Family Code, as amended by this |
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| 96 | 98 | | Act, applies only to conduct violating a penal law that occurs on or |
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| 97 | 99 | | after the effective date of this Act. Conduct violating a penal law |
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| 98 | 100 | | that occurs before the effective date of this Act is governed by the |
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| 99 | 101 | | law in effect when the conduct occurred, and the former law is |
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| 100 | 102 | | continued in effect for that purpose. For purposes of this section, |
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| 101 | 103 | | conduct occurs before the effective date of this Act if any element |
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| 102 | 104 | | of the conduct occurs before the effective date. |
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| 103 | 105 | | SECTION 3. This Act takes effect September 1, 2021. |
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